“So Many First Amend ...

“So Many First Amendment Violations, So Little Time” | Tom Leatherbury

March 9, 2023 | by D. Todd Smith

Listen to the podcast here:

Many lawyers go to law school thinking that they want to litigate weighty Constitutional questions. But those cases don’t often arise in regular practice.  One area that does implicate the Constitution is First Amendment law, which winds through so many aspects of civil practice. Few people know that better than Tom Leatherbury, the founder and director of SMU’s First Amendment Clinic. Tom joins Todd Smith and Jody Sanders to discuss his background in appellate law and his particular knowledge and expertise in First Amendment law. He also shares details about SMU’s clinic—how it started and what they do to help litigants and train a new generation of attorneys interested in these important principles.

Our guest now is a name many of you will already be familiar with. It’s Tom Leatherbury. He is the director of the SMU First Amendment Clinic. Tom, thanks so much for joining us.

I’m happy to.

Our audience already knows who you are, but for those that don’t or maybe those that don’t know you that well, can you tell us a little bit about your background and how you came into the law?

I grew up in Fort Worth, so I’m a Texas native. I went to Yale College and Yale Law School. I then moved back to Dallas to clerk for Federal District Judge Robert Hill who was on the bench at that time. I went into the law because it was the era of professionalism where you either went to business school, law school, or medical school. My seventh-grade science teacher, Sharon Foster, discouraged me from going to medical school after a dissection in the lab, so law seemed like it. My older sister was also a lawyer, so I had a little bit of experience with that in the family.

It sounds like there’s more to that story about the dissection.

I was bad. I never had a chance.

After you got done clerking, how did you start your practice?

I was fortunate enough to go to the Locke Parnell firm at the time, now Locke Lord. That’s where I started doing media law work because, at the time, the firm did most of the work for the Dallas Morning News and Channel 8. One of my first mentors was Steve Philbin, who was the Dallas Morning News’s lead lawyer.

I was in the office on a Saturday morning. I know that sounds very strange to younger lawyers, but I did go in on Saturday mornings. I got mail at the office and did a little face time, and then went to lunch with people. That’s what we did. Steve had lost a venue hearing in a defamation case in Denton for the morning news. He came bursting into my office on a Saturday morning and threw an order at me and said, “I need a brief.” That was back when you could appeal venue decisions all the way to the Texas Supreme Court.

I wrote a brief and was hooked. He was a great teacher, also John McElhaney and Warren Harrison. That’s how I got into media law. In ‘92, I moved to Vinson & Elkins. I had clerked in the Fort Worth office of Vinson & Elkins, which is now Kelly Hart & Hallman. In the summer of 1977, I split my summer between the Fort Worth and Houston offices of V&E. I was recruited to go there in ‘92 with a group from Locke of about six lawyers and stayed at V&E until the end of 2022.

Your practice has been a lot of appellate but was divided between litigation and appeals. Did you know you wanted to do appellate work?

I gravitated over there. There were no separate appellate sections when I got out of school. I did trial and appellate work, and you handled your own appeals by and large. Gradually, I gravitated toward doing almost all appellate work. Although with the media practice, you appear in the trial courts quite a bit, particularly since 2011 with the Texas Citizens Participation Acts. I enjoy being in trial and appellate courts. When I try cases, I haven’t helped try one for a long time but, what I do now is focus on the legal issues, the jury charge, the limines, and those sorts of things. I talk to the judge while the trial lawyers talk to the jury.

We have said that many times here on this show. The TCPA aspect of all this is worth a little further discussion. I can only imagine that as a media lawyer or First Amendment lawyer, that impacted your practice tremendously.

There have been a couple of big changes during the course of my career in First Amendment media law. The first one was driven by a big loss that we had. We represented Channel 8 in the Vic Feazell case in Waco, which resulted in a huge verdict and was ultimately resolved. The feeling was that if we had been able to appeal the denial of our summary judgment, we would have gotten some relief and would not have had to go to trial on eleven separate broadcasts about the former District Attorney Feazell and his criminal troubles.

In ‘93, the parent company of the Morning News at that time worked with a number of different law firms. The legislature passed the section of the Interlocutory Appeal statute that allows you to appeal denials of summary judgments in defamation cases. That changed the practice quite a bit. The TCPA was passed in 2011. It was amended in 2013 and amended again in 2019. It has changed law practice quite a bit for those of us who do media defense or citizen defense in defamation cases and other cases involving the rights covered by the TCPA.

As a media lawyer, do you get involved on the legislative side when those types of statutes are coming up or being amended?

I have done a little bit but not much. The clinic has participated in the last two sessions in a coalition. This session is called the Sunshine Coalition. It includes a number of public policy groups from the Texas Public Policy Foundation to the League of Women Voters and a number of media organizations. We talk mostly about changes in the Texas Public Information Act and the Open Meetings Act that the group would want to increase transparency in Texas.

The Texas Public Information Act, when it was passed several years ago as the Open Meetings Act, was an outstanding example of governmental transparency, and now it’s a just mess. It has so many exceptions and is so badly abused by municipalities and state agencies. The city of Dallas is one of the worst in producing open records.

I get a little bit involved in the legislative side. The thing I would love to see amended in the TCPA that I don’t think it’s going to happen this session is to eliminate the requirement that attorney fees be incurred in order to be recoverable under the TCPA. There are so many people who are defendants in SLAPP suits who can’t afford lawyers.

First Amendment: There are so many people who are defendants in SLAPP suits who can’t afford lawyers.

The clinic does its work pro bono and I have done a number of pro bono cases under the TCPA, but you can’t collect fees. You might be able to collect sanctions and use your fees as a proxy for the sanctions. As far as under the construction, the courts have given the fee provision under the TCPA. You can’t recover them unless the client owes you those fees.

You have to incur the legal obligation to pay as I remember.

It’s like the Medical Liability Act.

That made me think of it too. You are getting caught up in something that had nothing to do with the First Amendment because all of that was litigated under the medical expense recovery and personal injury cases. That is unfortunate.

You only have to eliminate one word. Sometimes cutting that last word from your brief hurts too.

That is an interesting issue, especially since we are going to get into talking about the clinic specifically, but for those of us that our clients generally incur our fees, we don’t think about that as much. The clinic has a specific interest. This applies to any number of pro-bono-type service providers, I would imagine. That’s an interesting issue to point out and consider.

We have mentioned the clinic a little bit. Let’s get a little bit more into that. How did the SMU First Amendment Clinic get started and how did you get involved?

It was in the winter of 2019 and 2020 that I got a call from Dean Jennifer Collins at SMU, who is a good friend. Her question to me was, “Would there be enough work to keep a First Amendment clinic busy at SMU?” That was her main concern. She had been offered a five-year operational grant by the Stanton Foundation in Cambridge, Massachusetts. Stanton is the Legacy Foundation. Frank Stanton was the head of CBS News and was very famous in the broadcasting and other industries.

Stanton has started 11 or 12 First Amendment clinics around the country. It’s one of the more recent until they agreed to launch two more, one in Illinois and one in Nebraska. Stanton had already funded Cornell, George Mason, Duke, Vanderbilt, and Georgia. Tulane started the same year we did. Arizona State started the year before us. Also, Wash U and Case Western.

The goal was to train the next generation of First Amendment advocates and to make students more practice-ready by giving them practical experience in working with clients, drafting pleadings, writing memos, writing briefs, and working with experienced lawyers in the field. When Dean Collins asked me if there would be enough work, I started laughing and rolling on the floor because the clinic’s informal tagline is, “Texas, so many First Amendment violations, so little time,” and it’s so true.

First Amendment: “Texas, so many First Amendment violations, so little time.”

If you look at the laws passed by the legislature over the past several sessions, you see incredibly unconstitutional laws like the Star Spangled Banner Protection Act, which compels us to listen to the Star Spangled Banner before every sports game played in a municipal venue or a venue with a city contract. You see the anti-boycott laws that are very unconstitutional. They are compelling government contractors to pledge they won’t boycott Israel during the term of their contract. They are compelling them to say they won’t boycott fossil fuel companies during the terms of their contracts. You see all sorts of constitutional legislation, particularly in the First Amendment area coming out of our state legislature.

I told Dean Collins, I said, “There would be absolutely enough work to stay busy.” She didn’t call me to ask me to consider being the director, but I started thinking about it. It was getting to be a good time for me to think about a transition, and it has provided the perfect transition for me. It’s very active. The clinic is extremely active. The students are great. I enjoy it. I did a lot of clinical work when I was at Yale Law School. It meant all the difference to me and how I felt about law school and my career even though the type of law I did in my clinic at Yale has nothing to do with anything I work on now.

What kind of clinic work did you do?

Back then, the state still had big state mental hospitals. I worked in a clinic called Mental Hospital Legal Services where we went up to the state hospital in Middletown, Connecticut. We represented individuals at civil commitment hearings. I even had a classmate who helped try a criminal case involving one of the patients at Connecticut Valley Hospital.

Gradually, I moved over to working in the children’s unit on special education issues because the law had changed and the big Federal Act had been passed, which required individualized education plans for students with disabilities, and there was a lot of work to be done. I appeared at school board meetings. I worked with families to try to get their children placed appropriately in either residential or non-resident settings.

You go to sleep worrying about the Footnote Four v. Carolene Products and you realize, “This is silly to be worried about that.” These people or our clients are dealing with real life-changing situations and you could have a real impact. If our clinic can do a little bit of that in the First Amendment area, it will be a huge success.

How do you structure it? How do you find the cases and get the students involved in all that?

SMU caps each of its 9 or 10 clinics at 8 students per semester. Our students have the opportunity to return for a second semester if they want to. We have had anywhere from 8 to 12 students this semester. That’s 8 in the clinic class and then 4 returning students who are all outstanding. Some of the cases that come to us are referrals from people I have known and journalists I have known over the years around the country. They come in all sorts of different ways.

My fellow now at the clinic, Peter Stephenson, spent five years before the clinic at Texas Civil Rights Project. He has deep ties in the civil rights community. We get some referrals that way too. That’s how we are working on one of our current cases. You assign students in teams or, sometimes, one student to a matter. You work with them and develop timelines like you would for cases. Your answers are due then and your special appearance is due then, and you move forward. There’s always a good mix of counseling and litigation.

How many cases at a time do you all have, typically?

Peter is great. He’s so organized. We went over our case tracker and it exhausted me. We probably have 20 active matters and others that are inactive right now. They have reached a certain point where you have done what you can do and you are waiting for the client to come back to you on something else.

I would say between 20 and 30 active matters. They are a mix of litigation and counseling, not some appellate stuff that’s one-and-done. We filed two amicus briefs this semester already in the Fifth Circuit. One is the case of Villarreal v. City of Laredo. It’s about a journalist who was arrested for asking a police officer questions about a suicide and then about a fatal traffic accident.

We filed one in the Fifth Circuit supporting Eugene Bullock’s effort. A federal district judge in San Antonio had sealed it entirely, unsealed it, and then sealed it again. It went up on appeal. That was a challenging brief for the students who worked on it because we couldn’t see anything. That’s how the brief starts. This is the case where we know next to nothing. It was a good exercise and the students did a fabulous job.

Our clients in the Villarreal v. City of Laredo case are three journalists, two of which we are representing in civil rights cases against the city of Dallas for their arrest or their detention during the George Floyd protest. In the sealed appellant versus sealed movement case, which is what the caption is, we represented Texas Public Radio from San Antonio, which has been a fabulous client for the clinic.

One of the first lawsuits we filed was a suit under the FOIA for Texas Public Radio so they could get access to records showing the fraud and abuse that was going on in a COVID-related food program called Farmers to Families. It turned out that the successful bidder in San Antonio was a wedding planning company that didn’t have a license to transport food and was going to transport it in wedding limos. It was a fabulous job of reporting on that situation. The wedding planner’s contract was not renewed when it came up for renewal.

I want to come back to your fellow. You mentioned your fellow Peter Stephenson. Is that a common thing for law school clinics to have fellows on staff, and what is their relationship to the clinic exactly?

We were fortunate because our funding included enough money to hire a fellow. Most of the clinics that I know in the First Amendment area do have a fellow or some of them have more than one. Cornell has a bigger operation than we have. There are a couple of other clinics at SMU that have fellows. The Hunter Clinic and Domestic Violence Victims Clinic have a fellow.

They generally are recent law graduates. Peter is a five-year lawyer. My fellow before this, Michael Shapiro, was a three-year lawyer when he started. They go on and do various things after their term is up at the law school. Peter and I are talking about teaching another class maybe next semester or the semester after that in the First Amendment area, and maybe some more tech overtones to it than we tackle now.

Some of them go on to teach at other clinical programs. Some of them go on to direct clinics, and some of them migrate over to the doctrinal faculty usually at another school. They do a variety of different things after it’s over. I believe that SMU is going to make sure that they are all adjunct faculty members, as well as fellows. It is so that we can make sure we meet all the ABA requirements for the supervision of law students and the Texas Supreme Court’s requirements for the supervision of law students as associate members of the state bar.

Do you also work with co-counsel on your cases?

We do a lot. Vinson & Elkins was generous in working on a number of clinic cases pro bono. I think it’s great for the young lawyers at larger firms because they generally get more responsibility and take up a bigger slice of the puzzle in some pro bono cases than they are able to do in other high-stakes litigation.

We have worked with V&E on a defamation case or two, both of which are pending in the Texas Supreme Court. On an open records case for the Marshall Project, Keri Blakinger was a good client at the clinic. She was the reporter in Houston for the Marshall Project who left for the LA Times. We got a number of different records from the Harris County District Attorney for her.

We have an interesting case now for a Nigerian journalist-activist who has been sued for defamation in Collin County by a pro se, also Nigerian-American. We are working on that with Jackson Walker. We have done some things with Haynes and Boone. I have had a number of different offers from other generous lawyers who like to work with students. We are always on the lookout for opportunities to co-counsel because it’s great for the students to see other lawyer styles, to work on teams, and see how other people get it done, as well as working with Peter and me.

That’s one thing that I hope people will understand. You may not have a First Amendment practice. You may have a family law practice, for example. You may have a different kind of practice. There are clinics out there with students who need work and who want to work. They will do it pro bono, whether it’s an amicus brief to be written in one of your cases or representing a witness in one of your cases that doesn’t have money to pay a lawyer. It can be a real help for people to leverage their practices.

One of the best experiences our students had over the first two years of the clinic was writing an amicus brief for Connie Pfeiffer at Yetter Coleman. She had a defamation case where a hospital was stuck for a $6 million verdict by a physician. We took on an amicus brief for a couple of healthcare organizations. We’re able to write the brief, watch the argument, and help with a little bit of argument prep because of Connie’s generosity. We watch the argument and see her get the win. It was a good experience for the students to get behind the scenes in depth in a case and feel like they made a difference.

When we talk about First Amendment, it does have a wide breadth. What are some of the types of cases that you take on or have taken on?

We divide the cases into three different buckets. The first bucket would be Core First Amendment cases. We were fortunate enough during the first year of the clinic to get a Fifth Circuit appointment in a Bivens case. It was about a federal inmate alleged retaliation because he was exercising his right to petition and file grievances. Two students got to argue that before the Fifth Circuit by Zoom. It was fabulous and they did a terrific job.

With the Core First Amendment cases, we also have the cases against the city of Dallas for wrongfully arresting or detaining journalists during the George Floyd protests. It was co-counsel with Texas Civil Rights Project in the Constitutional Challenge to the city’s panhandling ordinance that went into effect. There are some defamation cases that do have key First Amendment issues that are going to be dispositive.

The second bucket would be cases where there are First Amendment issues, but they may not be dispositive like some liable cases. We have represented the NAACP Texas Chapter and the League of Women Voters in the Crystal Mason case out of Fort Worth. Ms. Mason was convicted of illegal voting when she cast the provisional ballot that was never counted in the 2016 election. There’s a right to petition issue there but it may not be dispositive. This probably is not going to be dispositive where the case is now.

The third bucket would be most of our open records and open meetings and those types of cases. Whether it’s advising on it, writing a letter to the Attorney General in a TPIA case, or filing a lawsuit to try and get records that have been wrongfully withheld. Those are usually related to journalism endeavors but don’t expressly raise the First Amendment issue.

We’ve got all those types of cases for journalists, citizens, and media companies. We also do some pre-broadcast and pre-publication reviews for a couple of clients. That’s not going to expressly raise First Amendment issues, but it’s risk management and assessment of risk in stories and helping journalists say what they want to say without taking on an unnecessary risk.

What a broad swath of cases that come in and what a great opportunity for your students to work on meaty legal issues at a very important stage of their development. What’s it like working with them? You mentioned your students who handled the Fifth Circuit argument and did well. Any other comments about working with the students?

We muted them three times for the Fifth Circuit argument. Thanks to some faculty members at SMU and my colleagues at V&E. The students are surprising sometimes because they see things with a fresh eye. When you have been practicing as long as I have been, you sometimes get a little stale and a little old. You think you know what you are going to do and how you are going to approach things. Students will shake it up a little bit, and they have done exceptional work. We have gotten some other students in court. They have argued summary judgment motions in Texas Public Information Act cases and objections to evidence in TPIA cases and other things.

With the cases we have on the horizon, particularly the civil rights cases, they will get more courtroom opportunities, and I like to do that. It has been great working with students. They are engaged. The ones who come to the clinic are very practice-oriented. They want that practical experience. They want to hit the ground running when they reach their first employer. It’s a real pleasure to help them try and do that.

What’s your goal with the clinic? Is there something you are hoping to accomplish?

Goals are twofold. One is to educate students about the First Amendment and hopefully, regardless of what they do in their legal careers, they will understand First Amendment issues and how important the First Amendment is to every citizen’s right to participate in government and to speak their minds. Also, it gives the students practical experience and helps them start faster when they hit their post-grad jobs.

One thing Stanton stresses is to make sure that students know that part of being a First Amendment lawyer is defending speech you hate and the old saw about, “I disagree with what you are saying, but I will defend your right to say it.” I think that the First Amendment necessarily raises subjects that make some students uncomfortable. We have had discussions about the boycott laws in Texas. For some students, that’s not a comfortable discussion about whether the state can force government contractors to speak and that they won’t boycott Israel during the course of their state contract.

Some of the speech restrictions on abortion in the Texas abortion laws make students uncomfortable. Creating a comfortable atmosphere where uncomfortable subjects can be discussed is extremely important. I haven’t gone as far as to say this whole class is a trigger warning but there are some days when I think I should, and some client materials that students have reviewed come back. That’s part of it. You are not always going to like your clients, and you are not always going to agree with your clients.

That’s what I was thinking. What a very valuable lesson for those students to get at this stage to know that you have to get comfortable with being uncomfortable. Even outside the First Amendment context, there’s plenty of that you are going to see in your career that has nothing to do with working on a First Amendment case. That’s extremely valuable for them to learn and apply to any context that they see in their career.

If we have some Texas lawyers that are either interested in maybe asking for your help or providing help to you. Anything that people should know about reaching out to you either way? Are you looking for help? Are you looking to give help?

Unfortunately, we can’t take on everything that comes our way. We don’t have the bandwidth. For cases that are deserving that we can’t take on, I reach out to friends and see if they have the bandwidth to take them on and if they will take them on. We love to partner with other law firms and with other lawyers and expose the students to how those lawyers work and how they put teams together, how they get stuff done, and what their style is. That’s very valuable.

We have been fortunate enough that people have been very generous with their time. V&E was very generous with its resources and with its lawyers in helping the clinic get up and running. It has been a great partnership and will continue to be one and some of the other firms have too. There’s a little bit of trade-off that goes there too. Friends who are First Amendment lawyers will call and say, “I lost this case. We are going to take it up. Slot me in for an amicus brief in three months or whenever that happens.”

I’m not bashful about calling them and saying, “How about working on a case with us then because we are going to help you.” It’s a little tit-for-tat as we all know. It’s very comfortable. My SMU email works. It’s ThomasL@SMU.edu. That’s probably the best way to reach me about getting involved with the clinic, helping the clinic, or getting the clinic’s help.

It has been very exciting to follow what’s going on with the clinic. You have talked about it a lot on Twitter and elsewhere I believe. One of the things that I have always wondered about is you have retired from Vinson & Elkins but you were doing both gigs for quite a while. How did you pull that off?

Probably not very well. The clinic’s first semester was fall of 2020. We started during the middle of COVID in the hybrid teaching mode. There was some overlap between my practice at V&E and the clinic, and some pro bono cases that V&E allowed me to take on where the clinic was also involved. It was busy and it has remained busy. It’s good and busy at a healthy level. If I could finish moving my stuff out of V&E and sign all the paperwork I need to sign, I will be better.

That’s my fault because I had 3 briefs due in one week in December, 2 for the clinic, and 1 for V&E matters. Holidays came and I can’t get it done. It has been busy but it has been good. At the clinic, you do feel like you are giving back a little bit. It’s a good thing to do. It was so meaningful to me. When I was in law school, I’m still in touch with my mentors at the Yale clinic. If I could do a little bit of that for some students, that would be a big win for me.

When you started the clinic and you were still actively practicing at V&E, did you envision that you’d make that transition and leave V&E and go full-time with the clinic?

Not right away. It’s always good to be thinking about it. It was in my mind as a possibility, if I liked it or if the timing was right, or if it was as fulfilling as I hoped it would be and it has been. I think it’s always good to do things on your own terms and take control of what you can take control of, and plan what you can plan. I feel like it worked out pretty well for me thus far.

Do you have a particular case that you have handled that’s maybe the most satisfying one?

At the clinic?

Either one. At the clinic or in your practice.

Some of the clinic cases are still ongoing, so I can’t tell you whether they are ultimately going to be satisfying. It was certainly satisfying to have that initial win and get documents from the U.S. Department of Agriculture about the COVID-related food contract for Texas Public Radio. It has been satisfying working with some clients who have published sensational pieces that we have a hand in pre-publication review and helping them get the information for the piece in the first place.

I don’t think there has been an unsatisfying case at the clinic. Some of them can be frustrating when the attorney general rules against you on an open-records matter. You then have to decide whether to sue or not and whether it’s worth it. The client has to decide whether it’s worth it. Overall, they have been very satisfying.

In my private practice, there are a couple of cases that stand out as cases that if I had been independently wealthy, I would have retired after winning because it is not going to get much better than that, but I kept on plugging away. The case that we have talked about that represents CBS 60 Minutes in a jury trial in El Paso Federal Court, which was 25 years ago now, was one of those magical experiences that you never have where the trial went flawlessly. It couldn’t have gone better. I would have retired if I could have at that point. The jury found that sometimes the truth hurts. It was a true defamatory verdict for the defendants.

That had to be satisfying. Maybe we should clarify that in addition to your responsibilities with the clinic, you have opened Thomas S. Leatherbury PLLC. You still are in active law practice. You haven’t hung it up solely in favor of working for the clinic. I thought that this would be a good time to ask you about another extremely significant case that you worked on. All lawyers in Texas that don’t know about it must have been hiding under a rock because it directly impacted their livelihood.

It was originally styled, MacDonald v. Searle. It’s a federal case filed here in Austin, heard by the district judge here, and then eventually decided by the Fifth Circuit. Rather than have me talk about it, can you give us a quick overview of the case and what the issues were? It dovetails right into the First Amendment discussion.

It was a First Amendment case. I would say at the outset that it’s all in the public record. Anything I’m going to say is in the public record. You can see it and it was an amazing experience to have. Forty-eight lawyers sued in their official capacities as your clients. That was a lot of cats to herd. Representing the state bar board was an incredibly satisfying experience. I have never felt more supported by clients and more understood in terms of where the litigation was going and the decisions that the board had to make.

It was a First Amendment challenge to the State Bar Act. Three lawyers sued, alleging that their compulsory dues were being used for activities they should not be used for, primarily speech-related activities and legislative activities. Their position was in light of the Supreme Court’s opinion in the Janus case that compulsory bars were the next thing on the chopping block after unions, and that compulsory dues could not be used to speak on matters that they disagreed with.

The opponent on the other side is a terrific law firm of all former U.S. Supreme Court clerks. They are so easy to work with as opponents and so high quality. I couldn’t say enough about the quality of their lawyering. Judge Yeakel gave us summary judgment. We built a pretty fulsome record. It was 700 pages or so of declarations and exhibits. The plaintiffs challenged a number of programs of the state bar like the annual meeting, bar journal, legislative activity, and anything that involved speech financed by mandatory bar dues.

The Fifth Circuit reversed in part and held that portions of the state bar’s legislative program and the access to the justice commission’s legislative program were not germane to the two ends served by the State Bar Act. That’s improving the quality of legal services and regulating the practice of law as a profession. Those were not properly expended. The State Bar Board acted quickly. We are very proud of the work that they all did to amend certain portions of the policies and procedures and the state bar rules. They asked the court to make a couple of changes in some of the state bar rules.

The opinion came out right before the 4th of July 2021. I remember it was the Friday before the 4th of July. By the end of September, we had updated bar procedures and rules in place and were able to go to Judge Yeakel and get the judgment entered. The plaintiffs did take it up to the U.S. Supreme Court and it was held over a time or two. We crossed petitioned, alleging that the speech by the state bar was government speech and therefore was not regulated under the First Amendment.

At the beginning of April 2022, the Supreme Court denied cert in our case and in two other state bar cases that were up there at the same time. I have nothing but admiration for the work the State Bar does, the work that it does on behalf of lawyers in the state, and the advantages that they get lawyers in the state through the state bar. I was happy to be part of the effort to save and update the State Bar of Texas.

You undersell yourself a little bit there, Tom. I know you were the lead lawyer in the case. There was quite a team behind you. Vinson & Elkins provided a lot of valuable counsel with a lot of folks involved. As I remember, there was an ongoing or there’s still an ongoing permanent injunction that has a regulatory aspect to it for the state bar. This is not a one-and-done situation where the case is entirely over. Am I right?

The final judgment was entered and I haven’t looked at it in a while. The state bar is under the obligation to operate within the limits set down by the Fifth Circuit as to what’s germane and what’s not germane. There’s ongoing oversight. The state bar has changed and made even more transparent a number of its processes, budgeting, legislative processes. It has an ongoing effect, that’s for sure. The bar is very mindful of what the Fifth Circuit holding was and what the judgment entered by Judge Yeakel after the Fifth Circuit appeal requires.

That cert denial was quite satisfying.

I had a sore finger for days after hitting refresh. The sleepless night before that Monday.

On behalf of the Lawyers of the Texas Bar, thank you for your work on that. We value having a Mandatory Bar Association and the things that come along with that, including the right to self-regulation, which is a huge aspect of this. We are grateful for your work. You always held yourself and carried yourself in a way that represented the bar well based on my personal observation. Thank you for that. As we get ready to close, it’s our tradition that we ask our guests to share a tip or a war story if they are able. I happen to know that you have got one that is going to be pretty good. I’m looking forward to hearing your war story.

There are so many war stories about the First Amendment violations in Texas. There are so many and so little time. I shared with you one of the moments that made the defense of CBS 60 Minutes in El Paso in Judge Briones’ court so memorable. One of our key witnesses was a woman who ran the medical clinic closest to the slum-like neighborhoods that the plaintiff’s family owned and operated.

The woman who ran the clinic happened to be a Roman Catholic nun and a medical doctor. Her name was Sister Janet Gilde and she passed away. She was one of the loveliest women you would ever want to meet. She was our last witness on a Friday afternoon before the jury went home for the weekend. My former law partner, Bill Sims, took her on direct. He started in the strangest way.

He said, “Sister Janet, how would you get to Dairyland or the Colonia owned by this family if you were to leave the courthouse?” She told him. She said, “You get on I-10 and you go east. You get to Asuncion and you get off at Asuncion.” He walked her through exactly how to get there and where they would go. We were all shaking our heads and going like, “What?”

There was a method to his madness because there were TV reporters in the courtroom. We walked back to the hotel after Sister Janet’s utterly devastating testimony to the plaintiffs. The TV reporters had all gone out there. There hadn’t been any local coverage of the slum-like conditions in these Colonias until then. It was all over the news that weekend. We did win the case. You only talk about war stories where you win. My advice to the young lawyers out there is to always have a nun medical doctor as your last witness on a Friday afternoon and get chummy with the TV reporters.

Thanks for spending time with us. We sure appreciate it. It has been enlightening. We certainly enjoyed talking with you.

Thank you. It’s my pleasure. Come and see us at the clinic.

We’ll do that.

Important Links

Love the show? Subscribe, rate, review, and share

A special thanks to our sponsors:

Join the Texas Appellate Law Podcast Community today:

About Tom Leatherbury

Tom Leatherbury has over forty years of experience in state and federal appeals and trials. During that time, he has worked on commercial, tort, intellectual property and health care cases, as well as class actions. Tom has made 37 appellate and countless trial court arguments, and has tried or handled the appellate-related portions of close to 20 jury trials.

Tom has also regularly represented traditional and digital publishers and broadcasters in all aspects of media litigation throughout his career, including libel, privacy and other torts; reporter’s privilege; newsgathering and access; misappropriation; and breach of contract actions.

Tom is also deeply committed to training young lawyers in Continuing Legal Education (CLE) courses and to an extensive range of pro bono work, from family and immigration to constitutional law. Among many other honors, he was recently named a fellow in the American Academy of Appellate Lawyers, was presented with the Dallas Bar Foundation Justinian Award, and was awarded a Presidential Citation from the State Bar of Texas for his commitment to helping its diversity and inclusion efforts.